R v Kalwig - [2009] VSC 373

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No 1404 of 2008

THE QUEEN

DAVID LAWRENCE KALWIG

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JUDGE:	WEINBERG JA
WHERE HELD:	Melbourne
DATE OF HEARING:	15-18, 20-24, 28, 29 July and 12 August 2009
DATE OF SENTENCE	1 September 2009
CASE MAY BE CITED AS:	R v Kalwig
MEDIUM NEUTRAL CITATION:	[2009] VSC 373

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Convicted on three counts of dangerous driving causing death – Found to have driven semi-trailer in Burnley tunnel at a speed or in a manner dangerous to the public – Semi-trailer swerved to avoid collision with vehicle stopped in left lane – Failed to pay proper attention to road ahead – Total effective sentence of five years with non-parole period of two years and nine months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P N Rose SC and Ms A C Fox	Office of Public Prosecutions
For the Accused	Mr G J E Steward and Mr T Kassimatis	Tony Hargreaves & Partners

HIS HONOUR:

David Lawrence Kalwig, after a trial which lasted some 11 days, you were acquitted by the jury of three counts of culpable driving causing death, but found guilty instead of three counts of the lesser and alternative offence of dangerous driving causing death. The maximum penalty for each offence was, at the time of its commission, five years’ imprisonment. In March 2008, the maximum penalty was raised to ten years’ imprisonment. However, you are, of course, to be sentenced on the basis of the five-year maximum.

The circumstances surrounding the commission of these offences have been widely publicised, and were brought out clearly at the trial. At about 9:54 am on 23 March 2007, you were driving a 1986 Louisville prime mover towing a refrigerated trailer, bearing a McCain’s logo, in an easterly direction through the Burnley tunnel. Your vehicle became involved in a series of collisions, which resulted in the deaths of three men, each the sole occupant of his own vehicle. This caused a major fire within the tunnel, which led to about 300 people having to be evacuated. The tunnel was then closed for three days.

The three men whose deaths you caused were Geoffrey Kennard, Darren Sporn, and Damian McDonald. None of them was in any way to blame for what occurred. Their deaths were brought about solely because of the manner in which you drove. In a setting that clearly required you to exercise caution, you failed to keep a proper lookout and drove at a speed that was, in all the circumstances, excessive.

You were at the time aged 41. You had, by March 2007, worked as a truck driver for some 17 years although, most of that time, you had been driving smaller vehicles rather than large semi-trailers. You were employed by a company known as Sub Zero Transport and Storage, which transported refrigerated goods. You had been driving the McCain’s truck since November 2006, a period of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kalwig

Details

AGLC: R v Kalwig [2009] VSC 373
Case: [2009] VSC 373
Decision Date: 1 September 2009

CaseChat Overview and Summary

The accused, Kalwig, was convicted on three counts of dangerous driving causing death. He had driven a semi-trailer through the Burnley tunnel at a speed or in a manner that was dangerous to the public. The semi-trailer swerved to avoid a collision with a vehicle stopped in the left lane. Kalwig failed to pay proper attention to the road ahead, resulting in a tragic accident. The case was heard in the Supreme Court of Victoria, where the accused faced serious charges for his reckless driving.

The court was tasked with determining the severity of Kalwig's actions and the appropriate sentence. The primary legal issue was whether Kalwig's driving constituted dangerous driving causing death under the relevant legislation. The court also had to consider the circumstances leading up to the accident, including the accused's attention to the road and the speed or manner in which he drove the semi-trailer. Another consideration was the appropriate sentence to be imposed, taking into account the gravity of the offence and the need for deterrence and rehabilitation.

The court found that Kalwig's actions were indeed dangerous and caused the deaths of three individuals. It was determined that he had driven the semi-trailer in a manner that was dangerous to the public by failing to pay proper attention to the road ahead. The court also noted that the accused's speed or manner of driving contributed to the accident, as the semi-trailer swerved to avoid a collision with a stopped vehicle in the left lane. The court imposed a total effective sentence of five years, with a non-parole period of two years and nine months. This sentence was considered appropriate, given the seriousness of the offence and the need to deter others from engaging in similar reckless behaviour.

The court ordered Kalwig to serve a total effective sentence of five years, with a non-parole period of two years and nine months. The accused was found guilty on all three counts of dangerous driving causing death. The court's decision sends a strong message about the consequences of driving recklessly and the importance of paying proper attention to the road and other road users.

Orders